Stevens v Hamed

A claim for repayment of money paid towards an uncompleted purchase of foreign land is an in personam claim. It does not fall within the exclusionary rule concerning jurisdiction over title to foreign land where the judgment would neither affect title nor require the court to determine ownership.

On an application for a stay on forum conveniens grounds, the applicant must show that the foreign forum is clearly or materially more appropriate. If reliance is placed on foreign law, evidence must identify any relevant difference between that law and English law. Witness location, convenience, the issues requiring determination and the likely relevance of foreign law are assessed in the round.

The claimant sought repayment of money advanced to the defendant towards the proposed purchase of a holiday apartment in Egypt. The purchase never formally completed and the apartment was later sold to a third party. The claimant advanced an unjust enrichment claim, while the defendant disputed responsibility and contended that the money had been received for a company connected with him.

The defendant challenged the English court’s jurisdiction on the basis that the claim concerned title to foreign land. Alternatively, he sought a stay in favour of Egypt on forum conveniens grounds. A default judgment had also been entered after an acknowledgement of service was filed, raising a procedural issue as to whether the stay application could be heard.

1. Jurisdiction. The claim was not, in form or substance, one concerning title to foreign land. The purchase had not completed, the apartment had been sold on, and the claimant did not claim ownership. The claim was for recovery of money allegedly held pending completion or repayable when the purpose failed.
2. An in personam claim is not subject to the exclusionary rule of jurisdiction relating to foreign land. The English court can order specific performance of an agreement concerning foreign land, and there was no principled distinction here between seeking completion and seeking repayment of the purchase price. Any judgment would not affect title or determine a disputed claim to title. The jurisdictional challenge therefore failed.
3. Default judgment and stay. The court rejected the submission that a stay could not be considered until the default judgment had first been set aside. A stay application on forum conveniens grounds could in principle be determined notwithstanding the entry of a default judgment. The judge provisionally considered that the judgment had been irregularly entered because the acknowledgement of service was filed before judgment was actually entered, but deferred setting it aside until the parties had been heard.
4. Forum conveniens. The burden lay on the defendant to establish that Egypt was the more appropriate forum. Although the transaction, some witnesses and the proposed property were connected with Egypt, the principal witnesses were in England or regularly present there. Evidence from Egyptian witnesses could be obtained by video link, if necessary with an interpreter.
5. The judge was prepared to assume that Egyptian law applied, but the defendant had identified no relevant difference between Egyptian and English law. The English court was accustomed to receiving evidence of foreign law, and the evidence did not establish that Egyptian law made Egypt the more appropriate forum. The defendant also failed to show that any possible claim involving Orascom or Camarin required proceedings in Egypt. The stay was therefore refused.